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CITRIX SOLUTIONS NETWORK MEMBERSHIP AGREEMENT
This Agreement ("Agreement") is between:
Citrix Systems, Inc. ("Citrix"), a Delaware corporation, located at 0000 XX 0xx
Xxx, Xxxx Xxxxxxxxxx, Xxxxxxx 00000, and FutureLink Distribution Corp., an
Alberta, corporation located at: 000, 000 - 0xx Xxxxxx X.X., Xxxxxxx, XX X0X 0X0
(the Citrix Solutions Network Member or "CSN Member") -/
Whereas, CSN Member desires to recommend or to provide comprehensive computer
solutions to its customers in the Territory in accordance with the Member
program defined in the attached Schedule; and
Citrix desires to supply Citrix software and provide services and support on
Citrix products to assist CSN Member in providing its customers with such
solutions;
Now, therefore, in consideration of the mutual promises contained herein, the
parties agree as follows:
1. Member Obligations. Pursuant to this Agreement, Member makes the following
promises and undertakes the following obligations to Citrix:
1.1 CSN Member shall procure Citrix products from authorized distributors
of Citrix products in accordance with the terms of the license agreements
provided with each product, provided however that CSN Member may distribute the
Citrix products in accordance with the license granted in Section 2.1 of this
Agreement.
1.2 When requested by Citrix, CSN Member shall provide information to
Citrix regarding sales leads, referrals and services provided relating to the
Citrix products. The information shall be compiled in the form requested by
Citrix or such other form as may be agreed upon by the parties and shall be
forwarded to the Citrix address indicated above.
1.3 CSN Member represents and warrants that all the information provided to
Citrix hereunder, including the information supplied on the completed Schedule
attached to this Agreement, is, in all material respects, true and Correct to
the best of its knowledge and belief, and will Continue to be so during the term
of this Agreement. Should there be any changes in such information during the
course of this Agreement, CSN Member agrees to promptly inform Citrix in
writing, giving details of such changes.
1.4 CSN Member warrants that at all times during the term of this Agreement
at least one (1) full-time member of its staff located at CSN Member's principal
place of business will be a Citrix-certified WinFrame Service Professional.
1.5 Upon execution of this Agreement, the Citrix Solutions Member shall pay
the fees set forth in the Schedule that accompanies this Agreement.
2. Citrix Obligations. Pursuant to this Agreement, Citrix grants the following
license, makes the following promises and undertakes the following obligations
to CSN Member:
2.1 Citrix grants to CSN Member a non-exclusive, non-transferable license
to distribute Citrix products to end users in the Territory pursuant to the
license agreements included with such products.
2.2 Citrix grants to CSN Member a non-exclusive, non-transferable license
to sublicense a limited number of copies of Citrix products to end users for
evaluation purposes only in accordance with the terms of the Citrix Evaluation
Program. The terms of the Citrix Evaluation Program are available upon request
and may be amended by Citrix at any time.
2.3 CSN Member is entitled to the support option shown in the Schedule to
this Agreement.
3. Trademarks.
3.1 During the term of this Agreement, CSN Member shall have the right to
identify itself as a "Citrix Solutions Provider."
3.2 During the term of this Agreement, CSN Member may refer to Citrix
products using the Citrix product trademarks in compliance with local laws and
Customs concerning the protection of trademarks and
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trade names if the reference is not misleading and does not indicate or imply
Citrix's endorsement, testing, or approval of any other product or of any
service offered by CSN Member. The appropriate trademark symbol (either "TM"
[standard trademark] or (R) [registered trademark] in a superscript following
the product name) shall be used whenever a Citrix product name is mentioned in
any advertisement, brochure, or material circulated or published in any form
whatsoever by CSN Member. The appropriate trademark symbol must be used in
conjunction with, at least, the first reference to each Citrix product in all
CSN Member's publications.
3.3 Citrix reserves the right to amend any Citrix trademark, service xxxx
or logo and agrees to notify CSN Member of any such amendments that are relevant
to CSN Member's business. CSN Member agrees to ensure that its use of any such
xxxx and/or logo is amended accordingly.
3.4 CSN Member shall obtain Citrix's written approval prior to the
commencement of any other use of a Citrix trademark or trade name.
3.5 CSN Member shall not use any Citrix service xxxx during the term of
this Agreement or thereafter.
4. Confidentiality.
4.1 Each party expressly undertakes to retain in confidence the terms and
conditions of this Agreement and all information transmitted to the other that
the disclosing party has identified in writing as confidential.
4.2 Either party may disclose confidential information as required by
governmental or judicial order, provided such party gives the other party prompt
written notice prior to such disclosure and complies with any protective order
(or equivalent) imposed on such disclosure.
4.3 Neither party shall have an obligation to maintain the confidentiality
of information that (i) it received rightfully from a third party prior to its
receipt to the disclosing party; (ii) the disclosing party has disclosed to a
third party without any obligation to maintain to such information in
confidence; or (iii) is independently developed by the obligated party. Each
party's obligation under this Section shall survive the expiration or earlier
termination of this Agreement and shall extend to the earlier of such time as
the information protected hereby falls into the public domain through no fault
of the obligated party or five (5) years following termination or expiration of
this Agreement.
5. Term and Termination.
5.1 This Agreement shall take effect on the date of its execution by Citrix
("Effective Date"), and unless terminated earlier as provided herein, shall
continue for a period of one year from the Effective Date. Either party shall
have the right to terminate this Agreement at any time, without Cause and
without the intervention of the courts, on the giving of thirty (30) days' prior
written notice. Neither party shall be responsible to the other for any costs or
damages resulting from the termination of this Agreement.
5.2 Upon expiration or termination of this Agreement, all rights and
licenses granted by this Agreement shall revert to Citrix and CSN Member shall
immediately cease use of all licenses and the Citrix Solutions Provider logo,
and shall cease to represent itself as a Citrix Solutions Provider.
6. New Products.
6.1 Notwithstanding any other provisions of this Agreement, Citrix may
elect any time during the term of this Agreement to announce new Citrix products
to which the terms and conditions of this Agreement may not apply. New versions
(upgrades), minor product revisions (updates), and maintenance releases of
existing titles are not considered new Citrix products.
7. Warranties/Limited Warranties.
7.1 Citrix warrants Citrix products on the terms set Out in the license
agreement accompanying each such product. THESE LIMITED WARRANTIES ARE IN LIEU
OF ALL OTHER WARRANTIES AND CONDITIONS, EXPRESSED, IMPLIED, OR STATUTORY,
INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, AND
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AGAINST INFRINGEMENT AND OF ALL OTHER OBLIGATIONS, CONDITIONS, OR LIABILITIES ON
CITRIX'S PART EXCEPT AS OTHERWISE PROVIDED BY APPLICABLE LAW.
8. Limitation of Liability.
8.1 Subject to applicable law, neither Citrix nor anyone else who has been
involved in the creation, production, or delivery of the products or services
that are the subject of this Agreement shall be liable for any direct, indirect,
consequential or incidental damages (including damages for loss of business
profits, business interruption, loss of business information, and the like)
arising out of the use of or inability to use the Citrix products, or provision
of, or failure to provide, support, even if Citrix has been advised of the
possibility of such damages. Because some jurisdictions do not allow the
exclusion or limitation of consequential or incidental damages, the above
limitation may not apply. In any event, except as otherwise provided by law, the
liability of Citrix or its suppliers, whether for negligence, breach of
contract, breach of warranty, or otherwise, shall, in the aggregate, not exceed
the amount paid to Citrix by CSN Member hereunder.
9. General.
9.1 Except as expressly granted herein, no license regarding the use of
Citrix's copyrights, patents, trademarks or trade names is granted or will be
implied.
9.2 If a particular provision of the Agreement is terminated or held by a
court of competent jurisdiction to be invalid, illegal, or unenforceable, this
Agreement shall remain in full force and effect as to the remaining provisions.
9.3 No waiver of any breach of any provisions of this Agreement shall
constitute a waiver of any prior, Concurrent, or subsequent breach of the same
or any other provisions hereof, and no waiver shall be effective unless made in
writing and signed by an authorized representative of the waiving party.
9.4 Neither this Agreement, nor any terms and conditions contained herein,
shall be construed as Creating a partnership, joint venture, franchise or agency
relationship between Citrix and CSN Member.
9.5 CSN Member agrees that it shall inform its Customers that CSN Member is
an independent business from Citrix, and shall not hold itself out as an agent
of Citrix, or attempt to bind Citrix to any third-party agreement. CSN Member
shall defend, indemnify, and hold harmless Citrix from and against all
liabilities, claims, costs, fines, and damages of any type (including attorney's
fees) arising out of or in any way related to CSN Member's delivery of training
services and/or product support to its customers.
9.6 This Agreement, and any rights or obligations hereunder, shall not be
assigned or sublicensed by CSN Member, without prior written Consent from
Citrix.
9.7 This Agreement shall be governed by the laws of the State of Florida
and CSN Member Consents to jurisdiction and venue in the state and federal
Courts sitting in the State of Florida. If either Citrix or CSN Member employs
attorneys to enforce any rights arising Out of or relating to this Agreement,
the prevailing party shall be entitled to recover costs and attorney's fees.
9.8 The making, execution and delivery of this Agreement have been induced
by no representations, statements, warranties or agreements other than those
herein expressed.
9.9 No term or provision of this Agreement may be changed, waived,
discharged or terminated except by a writing signed by duly authorized officers
of the parties hereof. The terms of any other documents or electronic
Communications exchanged (including the terms Set forth on any purchase order)
shall be of no force or effect unless incorporated herein as a modification or
addition to the terms of this Agreement.
9.10 This Agreement and the Schedule (which is incorporated herein by
reference) constitute the entire agreement between the parties with respect to
the subject matter hereof and supersedes all prior and Contemporaneous
communications including all prior and Current Citrix Authorized Reseller and
Citrix Authorized Premier Reseller Agreements. It shall not be modified except
by a written agreement dated subsequent to the Effective Date of the Agreement
and signed on behalf of CSN Member and Citrix by their respective duly
authorized representatives.
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CSN Member
Company Name: FutureLink Distribution Corp.
Authorized Signature:
Name (printed): Xxxxx Xxxxxx
Title: Controller
Date: May 5, 1998
Accepted by Citrix Systems
Authorized Signature:
Name (printed)
Title:
Effective Date:
Schedule for Citrix Gold Solutions Provider
CSN Member: FutureLink Distribution Corp.
This is a Schedule to and a part of the Agreement between Citrix Systems, Inc.
("Citrix"), a Delaware corporation, located at 0000 XX 0xx Xxx, Xxxx Xxxxxxxxxx,
Xxxxxxx 00000, and the Citrix Solutions Network Member ("CSN Member") named
above.
1. Purchase Commitment; Territory
1.1 The benefits offered to Citrix Gold Solutions Providers pursuant to
this Schedule are based upon a commitment by CSN Member to achieve an annual
distribution to end users of a minimum of One Hundred Thousand Dollars
($100,000) of Citrix products. During the term of this Agreement, CSN Member
shall inform Citrix if, for any twelve month period beginning on the date of
execution of this Agreement or, in subsequent years, on the anniversary of such
date, the CSN Member shall not achieve this committed volume. The achievement of
the committed volume will be demonstrated at the close of each annual period by
submission to Citrix of copies of paid invoices for Citrix products.
1.2 CSN Member Territory: United States of America and Canada.
2. Fees, Payment Terms
2.1 A fee in the amount of Four Thousand Five Hundred Forty Five Dollars
($4,545) for the products and services provided by Citrix pursuant to this
Schedule shall he submitted to Citrix with CSN Member's signed copy of this
Agreement.
3. Citrix agrees to provide the following products and services to Citrix Gold
Solutions Providers:
3.1 Citrix Tool Box The box will include marketing, sales and technical
information and materials useful in the promotion of Citrix-based solutions for
Windows application deployment and remote Windows computing.
3.2 Citrix Sales Representative - Citrix will assign a Citrix sales
representative to assist Citrix Gold Solutions Providers in the marketing of
products.
3.3 Market Development Program - Citrix will provide up to Fifteen Hundred
Dollars ($1,500) in matching Market Development Funds and Volume Bonus rewards.
These funds may be used to match expenditures by CSN Member for pre-approved
marketing activities such as seminars, mailings and advertising. During the term
of this Agreement, CSN Member will Continue to be eligible to participate in the
Market Development programs offered by Citrix to Citrix Gold Solutions
Providers. All funds expire if not used during the term of the Agreement.
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3.4 Volume Bonus Program - For every Fifty Thousand Dollars ($50,000) in
WinFrame products acquired by CSN Member (as demonstrated by submission to
Citrix of copies of paid invoices for Citrix products), CSN Member will receive
one (1) copy of WinFrame for Networks at no charge.
3.5 Sales Lead Program - During the term of this Agreement, CSN Member will
be eligible to participate in Citrix generated sales leads and referrals
programs offered by Citrix to Citrix Gold Solutions Providers in CSN Member's
designated
market place.
3.6 Support Engineer - Citrix will assign a Citrix support engineer to
provide technical support by telephone and/or on-line to each Citrix Gold
Solutions Provider. Such technical support shall:
3.6.1 Be provided only to a CSN Member's Citrix-certified WinFrame
Service Professional;
3.6.2 Consist of access to a Citrix support engineer on weekdays
(other than nationally recognized holidays) between the hours of 8:00 AM and
8:00 PM (EST) for reporting problems encountered in the use of Citrix products
and the provision of workarounds released by Citrix to address reported
problems; and
3.6.3 Require the submission by email of a problem report which
includes a description of the software bug and a test case which demonstrates
the bug on the then current or penultimate release of the Citrix product.
3.7 On-line Technical Support - Citrix Gold Solutions Providers shall be
provided on-line technical support via CompuServe forum and/or BBS and FTP
sites.
3.8 One "virtual" Technical Self Study Kit. The virtual Kit provides a no
charge Technical Self Study Kit should the CSN Member's Citrix-certified
WinFrame Professional cease to be employed by CSN Member
3.9 Not-for-Resale WinFrame Software for Internal Use - Citrix will provide
to each Citrix Gold Solutions Provider one (1) not-for-resale copy of each
Citrix product procured by CSN Member hereunder solely for internal use to
provide support to end users.
3.10 Citrix Corporation Evaluation Program - Each Citrix Gold Solutions
Provider shall be eligible to place Citrix evaluation software at selected
accounts in accordance with the terms of the Citrix Evaluation Program.
